A Democratic Police Law for India: Seize the Moment

Mandeep Tiwana
Consultant, Access to Justice Programme, CHRI

At the recently concluded conference for district police chiefs in early September, the Prime Minister of India, Dr. Manmohan Singh reiterated the need for the police to be equal to the challenges facing the country’s future. Lamenting that the police are still governed by the Police Act of 18611 whose sole consideration was defending the establishment, the Prime Minister asserted that the police at all levels and particularly at the grassroots (or cutting edge) must change from being a feudal force to a democratic service. This resolve has been backed by the establishment of an Expert Committee comprised of eminent jurists, police officers and experienced civil servants, to prepare a draft of a new Police Act2 within six months.

Civil society has warmly welcomed this development as a window of opportunity to analyse how the existing police legislation contributes to the state of policing in India, and most importantly where it falls short. The major criticism of the Act of 1861 is that it vests the superintendence or control of the police directly in the hands of the political executive, without placing any limits or checks in the exercise of executive power. In practice, this means that state police chiefs enjoy their tenure at the pleasure of chief ministers. They may be removed at any time without any reasons being assigned. This leads to widespread politicisation of the police with allegiance being owed not to the law but to the ruling party in a state. The upshot is that the police have frequently become an instrument to marginalise political opponents and appease the existing political elite. Officers who resist illegitimate interference in their duties are subject to constant transfers and in extreme cases, departmental inquiries and even false legal proceedings.

In addition, the Act barely addresses police accountability. It relies solely on internal mechanisms to deal with acts of police misconduct. These may be arbitrary arrest, non-registration of cases, registration of false cases, excessive use of force, bias in investigation or general indiscipline. The problem with internal disciplinary systems is that people have little faith in them and there is a tendency within the police itself to protect its staff and image. By not seeing policing as a service whose performance must be assessed against set indicators on a recurring basis, the Act contributes to declining standards and public dissatisfaction with policing. Another persistent criticism is that the Act places no duty on the police to engage communities and enlist their partnership in achieving policing objectives. This is responsible for the negligible public input in policing plans and strategies, leading to widespread police – public alienation.

While substantive police reform requires a comprehensive and multi–pronged approach, at a minimum, the legislative framework governing the police should be steeped in democratic values and able to ensure the following.

Insulation from Partisan Politics

As with all public agencies, the police are accountable to the elected government. Equally, it is essential to give the police functional autonomy to do its duty by law. The distinction between appropriate political direction and illegitimate political interference in operational policing matters is important to establish in law, policy and practice. Recognising the ill effects of illegitimate political interference on the police’s capabilities, the National Police Commission, 1979-81 (NPC) asserted that the government’s superintendence over the police should be limited to ensuring police performance in strict accordance with the law. The NPC recommended that oversight of the police should be carried out by a specialised body - the State Security Commission - whose mandate will include laying down broad policy guidelines and directions for preventive and service oriented functions of the police, evaluating and keeping under review the functioning of the police. The NPC also called for a merit based and open procedure to appoint state police chiefs and to assign them a fixed tenure of three years. Assuring stability of tenure through law for cutting edge level posts, including those of district police chiefs and station house officers, will help prevent rampant politicisation of the police.

Multiple Levels of Accountability

In addition to internal disciplinary systems, the Police Act should provide for an independent mechanism to investigate public complaints against the police. In England and Wales, an Independent Police Complaints Commission addresses individual complaints against officers. South Africa has an Independent Complaints Directorate, separate from the police department and equipped with its own specialised staff to receive and investigate complaints. Further, the police as an organisation should be held accountable for the services it is expected to provide and on which huge amounts of taxpayers’ money are spent. The National Police Commission has recommended the appointment of a Director of Inspection to evaluate police performance and report to the State Security Commission. In Northern Ireland, the Policing Board, an independent public body established under the Police (Northern Ireland) Act 2000, sets objectives and targets for police performance and uses these to monitor progress. The Board publishes an annual report of performance against these objectives. In addition, the Board monitors trends and patterns in crime and devises ways for the public to cooperate with the police to prevent crime.

Community Consultation and Partnership

As policing in a democracy essentially involves serving communities, it is vital that police organisations be required by law to understand and respond to community needs, through consultation and partnership. In England and Wales, the Police Act of 1996 requires the police to make arrangements to find out the views of the local people and also to involve them in cooperating with the police to prevent crime. The Police Reforms Act 2002 further enables the chief officers of police to appoint suitable support staff from amongst citizens to function as community support officers and gives them powers to deal with anti-social behaviour. In South Africa, provincial governments are charged with the constitutional responsibility “to promote good relations between the police and the community”. The South African Police Service Act of 1995 prescribes the establishment of Community Police Forums at the police station level to act as the liaison between the police and the community. The liaison helps establish and maintain community – police partnerships. It promotes communication and co-operation; improves the rendering of policing services in the community; increases transparency in police functioning; strengthens accountability to local communities; and promotes joint problem identification and problem solving.

A Comprehensive Charter of Duties and Responsibilities

It is imperative that the Police Act contains a charter of duties and responsibilities, based on constitutional values, and attuned to upholding the rule of law. The National Police Commission did draw up a Model Police Act, way back in 1981 whose preamble stresses that “the police has a paramount obligation and duty to function according to the requirements of the Constitution, law and the democratic aspirations of the people”, and requires it “to be professional and service-oriented and free from extraneous influences and yet accountable to the people”. An elaborate list of relevant duties has been prescribed by the NPC, which can be taken into consideration.

In the past, numerous official committees and commissions have delved into the vexatious area of police reform in India, only to have their recommendations consigned to the record rooms. This happened because governments of the day did not wish to lessen their control over the police, who were deemed a tool of political patronage and manipulation. It is hoped that the present national government will deliver on its stated commitment to police reform by seriously considering the enactment of a democratic police Act, at least in the federally administered union territories. This will give it the moral strength to persuade state governments to follow suit.